COMMODORE, INC., D/B/A GREENSTREET CAFE v. CERTAIN UNDERWRITERS AT LLOYD'S LONDON, etc. ( 2022 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed May 11, 2022.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D21-0671
    Lower Tribunal No. 20-10334
    ________________
    Commodore, Inc. d/b/a GreenStreet Café, Inc.,
    Appellant,
    vs.
    Certain Underwriters at Lloyd's London, etc., et al.,
    Appellees.
    An Appeal from the Circuit Court for Miami-Dade County, Michael A.
    Hanzman, Judge.
    Reed Smith LLP and R. Hugh Lumpkin and Christopher T. Kuleba, for
    appellant.
    White & Case LLP and Raoul G. Cantero and Zachary B. Dickens, for
    appellees.
    Angelo I. Amador (Washington, DC); Jenner & Block LLP and Gabriel
    K. Gillett (Chicago, IL); Samantha H. Padgett (Tallahassee), for Restaurant
    Law Center and Florida Restaurant and Lodging Association, as amici
    curiae.
    Robinson & Cole LLP and Eugene P. Murphy, for American Property
    Casualty Insurance Association and National Association of Mutual
    Insurance Companies, as amici curiae.
    Before LOGUE, HENDON and LOBREE, JJ.
    LOBREE, J.
    Commodore, Inc. d/b/a GreenStreet Café, Inc. (“GreenStreet”), a
    restaurant and bar located in the Coconut Grove neighborhood of Miami,
    filed a claim with its commercial property insurer, Certain Underwriters at
    Lloyd’s, London (“Lloyd’s”), for business income losses it suffered when it
    suspended its operations during the COVID-19 pandemic. While Lloyd’s
    was investigating the claim, GreenStreet sought a declaratory judgment that
    the losses were covered under its insurance policy with Lloyd’s. The trial
    court dismissed GreenStreet’s petition for declaratory relief with prejudice,
    concluding that the policy at issue, which provided coverage for loss of
    business income due to the suspension of operations “caused by direct
    physical loss of or damage to property,” did not provide coverage for
    GreenStreet’s losses because “‘direct physical loss . . .’ requires some
    tangible alteration to insured property.” GreenStreet appeals from the final
    judgment of dismissal of its petition for declaratory relief. Because the trial
    court correctly determined that the economic losses allegedly suffered by
    GreenStreet are not covered under the policy, we affirm.
    2
    Factual and Procedural Background
    Lloyd’s issued an all-risk commercial property policy (the “Policy”) to
    GreenStreet, effective from February 15, 2020, to February 15, 2021. The
    Policy provides commercial property insurance “for direct physical loss of or
    damage to Covered Property at the premises described in the Declarations
    caused by or resulting from any Covered Cause of Loss.” Relevant here,
    the Policy includes a Business Income (and Extra Expense) Coverage Form,
    which reads, in part, as follows:
    A. Coverage
    1. Business Income
    ***
    We will pay for the actual loss of Business income
    you sustain due to the necessary “suspension” of
    your “operations” during the “period of restoration”.
    The “suspension” must be caused by direct physical
    loss of or damage to property at premises which are
    described in the Declarations and for which a
    Business Income Limit Of Insurance is shown in the
    Declarations. The loss or damage must be caused by
    or result from a Covered Cause of Loss. . . .
    ***
    2. Extra Expense
    ***
    b. Extra Expense means necessary expenses you
    incur during the “period of restoration” that you would
    not have incurred if there had been no direct physical
    loss or damage to property caused by or resulting
    from a Covered Cause of Loss.
    3
    (emphasis added). The “period of restoration” is a defined term in the
    Business Income (and Extra Expense) Coverage Form, and provides in
    relevant part, as follows:
    F. Definitions
    ***
    3. “Period of restoration” means the period of time
    that:
    a. Begins 72 hours after the time of direct physical
    loss or damage caused by or resulting from any
    Covered Cause of Loss at the described premises;
    and
    b. Ends on the earlier of:
    (1) The date when the property at the described
    premises should be repaired, rebuilt or replaced with
    reasonable speed and similar quality; or
    (2) The date when business is resumed at a new
    permanent location.
    The policy does not contain a virus exclusion.
    As was common throughout the country during the COVID-19 virus
    pandemic, on March 15, 2020, the City of Miami issued a local emergency
    measure stating that no business was permitted to operate at excess of 50%
    of its authorized total occupancy load and limiting the hours of operations of
    non-essential businesses. This emergency measure was followed shortly
    thereafter by Miami-Dade County emergency order 03-20, which ordered
    4
    restaurants with seating for more than eight people to close on-premises
    service of customers and the City of Miami’s second amendment to local
    emergency measures, which prohibited restaurants from serving food for
    consumption in dining areas in premises.       As a result of these orders,
    GreenStreet suspended its operations.          Notably, under the orders,
    restaurants were still permitted to operate for delivery, pick-up, or take-out
    services, and delivery personnel, employees, contractors, and janitorial
    personnel were allowed access to the establishments. 1
    GreenStreet promptly submitted a claim to Lloyd’s for its losses. After
    Lloyd’s neither issued a coverage position nor paid the claim, GreenStreet
    filed a petition for declaratory relief and damages seeking a declaratory
    judgment that the economic losses it suffered due to the suspension of its
    operations were covered under the Policy. GreenStreet alleged that the
    emergency orders issued to minimize the spread of COVID-19 “effectively
    limited on-premises dining and operations, resulting in a suspension of
    necessary operations and an immediate loss of Business Income and Extra
    Expense.” Although the Policy did not define the phrase “physical loss of or
    damage to property,” GreenStreet claimed that the phrase is reasonably
    1
    At oral argument, GreenStreet acknowledged that after it suspended
    operations on March 17, it later provided take-out dining services.
    5
    interpreted to include a case where the insured commercial property is
    unusable for its intended income-producing use.        In addition to loss of
    business income, GreenStreet also alleged that it incurred extra expense
    during the suspension of its business in the form of cleaning and disinfecting
    costs.
    Lloyd’s moved to dismiss the petition. After holding a hearing, the trial
    court dismissed GreenStreet’s petition with prejudice and entered final
    judgment in favor of Lloyd’s, 2 reasoning that “Florida precedent strongly
    suggests that ‘direct physical loss of or damage to property’ requires some
    tangible alteration to insured property, something Plaintiff has not—and
    2
    We note that the trial court procedurally erred in disposing of the issue of
    coverage on Lloyd’s’ motion to dismiss. Express Damage Restoration, LLC
    v. First Cmty. Ins. Co., 
    314 So. 3d 532
    , 534-35 (Fla. 3d DCA 2020) (holding
    that trial court procedurally erred when it reached issue of construction of
    insurance policy in dismissing complaint for declaratory judgment); see also
    Smith v. City of Fort Myers, 
    898 So. 2d 1177
    , 1178 (Fla. 2d DCA 2005) (“In
    determining the sufficiency of a complaint for declaratory judgment, the
    question is whether the plaintiff is entitled to a declaration of rights, not
    whether the plaintiff will prevail in obtaining the decree he or she seeks.”);
    Floyd v. Guardian Life Ins. Co. of Am., 
    415 So. 2d 103
    , 105 (Fla. 3d DCA
    1982) (“The possibility that a proper interpretation of the insurance policy
    would result in a decree adverse to plaintiffs does not preclude their right to
    a declaratory decree.”). However, GreenStreet expressly waived in its initial
    brief any objection to this procedural error. Because a justiciable issue
    existed between the parties, the trial court had jurisdiction to entertain
    GreenStreet’s claim for declaratory relief, and we may reach the merits of
    the coverage issue. Cf. State, Dept. of Env’t Prot. v. Garcia, 
    99 So. 3d 539
    ,
    545 (Fla. 3d DCA 2011).
    6
    cannot—allege.” GreenStreet’s appeal followed.
    Standard of Review
    “We review de novo an order dismissing a declaratory judgment count
    for failure to state a cause of action.” Express Damage Restoration, LLC,
    314 So. 3d at 534; accord Yacht Club by Luxcom, LLC v. Village of Palmetto
    Bay, 
    306 So. 3d 268
    , 271 n.4 (Fla. 3d DCA 2020).
    Analysis
    “Under Florida law, an insurance policy is treated like a contract, and
    therefore ordinary contract principles govern the interpretation and
    construction of such policy.” Allstate Fire & Cas. Ins. Co. v. Hradecky, 
    208 So. 3d 184
    , 186 (Fla. 3d DCA 2016). On that basis, “we must follow the
    guiding principle that [the Florida Supreme] Court has consistently applied
    that insurance contracts must be construed in accordance with the plain
    language of the policy.” Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 
    845 So. 2d 161
    , 165 (Fla. 2003); accord State Farm Mut. Auto. Ins. Co. v. Menendez,
    
    70 So. 3d 566
    , 569 (Fla. 2011) (“In interpreting an insurance contract, we are
    bound by the plain meaning of the contract’s text.”); Auto-Owners Ins. Co. v.
    Anderson, 
    756 So. 2d 29
    , 34 (Fla. 2000) (“Florida law provides that insurance
    contracts are construed in accordance with the plain language of the policies
    as bargained for by the parties.”). Thus, in the absence of “a genuine
    7
    inconsistency, uncertainty, or ambiguity in meaning [that] remains after
    resort to the ordinary rules of construction,” courts are not free to “rewrite
    contracts, add meaning that is not present, or otherwise reach results
    contrary to the intentions of the parties.” Excelsior Ins. Co. v. Pomona Park
    Bar & Package Store, 
    369 So. 2d 938
    , 942 (Fla. 1979).
    “[S]imply because a provision is complex and requires analysis for
    application, it is not automatically rendered ambiguous.” Swire Pac.
    Holdings, Inc., 
    845 So. 2d at 165
    ; accord Menendez, 
    70 So. 3d at 570
    ;
    Grover Com. Enters. v. Aspen Ins. UK, Ltd., 
    202 So. 3d 877
    , 880 (Fla. 3d
    DCA 2016). To that end, “[t]he failure to define a term involving coverage
    does not necessarily render the term ambiguous.” Barcelona Hotel, LLC v.
    Nova Cas. Co., 
    57 So. 3d 228
    , 230 (Fla. 3d DCA 2011); accord Swire Pac.
    Holdings, Inc., 
    845 So. 2d at 166
    . When a term or provision is undefined in
    the policy, its plain, everyday usage is applied. Heritage Prop. & Cas. Ins.
    Co. v. Condo. Ass’n of Gateway House Apts. Inc., 46 Fla. L. Weekly D1867,
    D1868 (Fla. 3d DCA Aug. 18, 2021) (stating “well-established principle that
    ‘[w]hen a policy provision remains undefined, common everyday usage
    determines its meaning’” (quoting Sec. Ins. Co. of Hartford v. Com. Credit
    Equip. Corp., 
    399 So. 2d 31
    , 34 (Fla. 3d DCA 1981))); see also State Farm
    Fire & Cas. Co. v. Castillo, 
    829 So. 2d 242
    , 244 (Fla. 3d DCA 2002) (“[T]erms
    8
    utilized in an insurance policy should be given their plain and unambiguous
    meaning as understood by the ‘man-on-the-street.’”).
    It is firmly established that “[i]n interpreting ‘insurance policies, courts
    should read each policy as a whole, endeavoring to give every provision its
    full meaning and operative effect.’” City of Florida City v. Pub. Risk Mgmt. of
    Fla., 
    307 So. 3d 135
    , 138 (Fla. 3d DCA 2020) (quoting Anderson, 
    756 So. 2d at 34
    ); see also State Farm Fire & Cas. Co. v. CTC Dev. Corp., 
    720 So. 2d 1072
    , 1075 (Fla. 1998) (“[P]rinciples governing the construction of
    insurance contracts dictate that ‘[w]hen construing an insurance policy to
    determine coverage the pertinent provisions should be read in pari materia.’”
    (quoting Nationwide Mut. Fire Ins. Co. v. Olah, 
    662 So. 2d 980
    , 982 (Fla. 2d
    DCA 1995))). Moreover, “[a]ll the various provisions of a contract must be
    so construed, if it can reasonably be done, as to give effect to each.” Univ.
    of Miami v. Frank, 
    920 So. 2d 81
    , 87 (Fla. 3d DCA 2006) (quoting Paddock
    v. Bay Concrete Indus., Inc., 
    154 So. 2d 313
    , 315 (Fla. 2d DCA 1963)).
    Here, the Policy does not cover claims for business income losses
    unless those losses arise from a suspension of operations “caused by direct
    physical loss of or damage to property.” The parties’ dispute, therefore,
    comes down to the meaning of that qualifying phrase, which is undefined in
    the Policy. GreenStreet primarily advances two arguments in support of its
    9
    position that economic losses caused by the loss of intended use of its
    business property, without accompanying actual, tangible alteration to the
    property, triggers coverage under the Policy. First, GreenStreet asserts that
    the trial court failed to consider the ordinary, dictionary definitions of the
    terms used in the qualifying phrase. Second, GreenStreet argues that the
    First District Court of Appeal’s decision in Azalea, Ltd. v. American States
    Insurance Co., 
    656 So. 2d 600
     (Fla. 1st DCA 1995), controls here and
    mandates the conclusion that the inability to use insured property for its
    intended use constitutes a direct physical loss of property. Applying the
    above principles, as well as decisions from this Court addressing materially
    similar language to the phrase at issue, we find that neither of GreenStreet’s
    arguments has merit.
    Turning to the text of the relevant phrase, GreenStreet argues that
    under its plain terms, “physical loss of or damage to property” can occur
    absent “structural alteration” of the insured property. GreenStreet asserts
    that in determining the meaning of the phrase, the trial court failed to consult
    legal and non-legal dictionaries.     It is true that “the first step towards
    discerning the plain meaning of [a term undefined by an insurance policy] is
    to ‘consult references [that are] commonly relied upon to supply the accepted
    meaning of [the] words.’” Arguelles v. Citizens Prop. Ins. Corp., 
    278 So. 3d 10
    108, 111 (Fla. 3d DCA 2019) (quoting Penzer v. Transp. Ins. Co., 
    29 So. 3d 1000
    , 1005 (Fla. 2010)); Barcelona Hotel, LLC, 
    57 So. 3d at 231
    . Even so,
    GreenStreet’s argument fails.
    Because the Merriam-Webster dictionary defines “loss” as “losing
    possession and deprivation,” GreenStreet asks that we look, in turn, to the
    definition of “deprivation”: “the state of being kept from possessing, enjoying,
    or using something.”     Deprivation, Merriam-Webster’s Online Dictionary,
    https://merriam-webster.com/dictionary/deprivation/ def. 1. But the use of
    “deprivation” as a synonym for “loss” does not address fact that the phrase
    still requires “physical” loss, and GreenStreet’s interpretation of “physical” is
    incomplete. See Santo’s Italian Café, LLC v. Acuity Ins. Co., 
    15 F.4th 398
    ,
    404 (6th Cir. 2021) (“Santo’s Café adds that ‘loss’ is a synonym for
    ‘deprivation’ and that it was deprived of its ability to use the premises for its
    intended purpose. . . . But this argument skates over the unrelenting
    imperative that the policy covers only ‘physical’ losses.”).       GreenStreet
    claims that “physical” merely means that a loss is not imagined. Physical,
    however, means “of or relating to matter or the material world; natural;
    tangible, concrete.” See Physical, Oxford English Dictionary Online (3d ed.
    2006), https://www.oed.com/, def. 6; see also Physical, Black’s Law
    Dictionary (11th ed. 2019) (“1. Of, relating to, or involving the material
    11
    universe and its phenomena; relating to the physical sciences. 2. Of, relating
    to, or involving material things; pertaining to real, tangible objects.”). Thus,
    because the ordinary meaning of “physical” carries a tangible aspect, “direct
    physical loss” requires some actual alteration to the insured property.
    Indeed, we held as much in Homeowners Choice Property & Casualty
    v. Maspons, 
    211 So. 3d 1067
     (Fla. 3d DCA 2017), where we considered a
    materially similar phrase. In Maspons, the homeowners’ insurance policy
    provided that it insured “against risk of direct loss to property described in
    Coverages A and B only if that loss is a physical loss to property.” Id. at
    1069. The homeowners sought coverage under an ensuing loss provision
    for the cost of tearing up and replacing the foundation above a broken pipe.
    Id. In reversing summary judgment in favor of the homeowners because the
    slab had not been opened and therefore ensuing loss could not yet be
    determined, this Court concluded that given the dictionary definition of “loss,”
    the broken pipe constituted a direct and physical loss to the property. Id. “A
    ‘loss’ is the diminution of value of something, and in this case, the ‘something’
    is the insureds’ house or personal property. Loss, Black’s Law Dictionary
    (10th ed. 2014).      ‘Direct’ and ‘physical’ modify loss and impose the
    requirement that the damage be actual.” Id. This Court reiterated that a
    direct physical loss means that the property was “actually damaged” in
    12
    Vazquez v. Citizens Property Insurance Corp., 
    304 So. 3d 1280
    , 1284-85
    (Fla. 3d DCA 2020) (finding trial court’s determination that insured loss was
    “the property that was actually damaged” was consistent with policy’s plain
    language providing coverage for “direct loss to property . . . only if that loss
    is a physical loss to property”); see also Mama Jo’s, Inc. v. Sparta Ins. Co.,
    823 F. App’x 868, 879 (11th Cir. 2020), cert. denied, 
    141 S. Ct. 1737
     (2021)
    (relying on Maspons and Vazquez to affirm district court’s conclusion that
    restaurant did not suffer a “direct physical loss” triggering coverage where
    restaurant was inundated with dust and debris from nearby road construction
    which required only cleaning and painting of property). Actual damage has
    a tangible aspect—it exits in fact. Given the tangible aspects of a physical
    loss, GreenStreet’s reliance on a truncated definition of “physical” to prove
    coverage under the plain language of the Policy fails. As Chief Judge Sutton
    succinctly wrote, in addressing the same phrase in an Ohio insurance policy:
    Whether one sticks with the terms themselves
    (a “direct physical loss of” property) or a thesaurus-
    rich paraphrase of them (an “immediate” “tangible”
    “deprivation” of property), the conclusion is the same.
    The policy does not cover this loss. The restaurant
    has not been tangibly destroyed, whether in part or
    in full. And the owner has not been tangibly or
    concretely deprived of any of it. It still owns the
    restaurant and everything inside the space. And it
    can still put every square foot of the premises to use,
    even if not for in-person dining use.
    13
    Santo’s Italian Cafe LLC, 15 F.4th at 401.
    GreenStreet argues that interpreting the Policy in this manner violates
    the contextual cannon that a contract should not be interpreted to render
    words redundant.     Put differently, GreenStreet argues that the Llyod’s
    conflates the terms “loss of” and “damage to,” which are set forth in the
    disjunctive in the phrase “physical loss of or damage to property.” But the
    terms are not redundant. Loss can include theft or complete ruin, while
    damage is considered a lesser harm to the property. In other words, “loss
    of” and “damage to” are degrees of harm, which in all events must be
    physical in order for there to be coverage. See, e.g., Santo’s Italian Cafe
    LLC, 15 F.4th at 404 (“There is no need to read ‘physical loss’ to include a
    deprivation of some particular use of a property in order to give the phrase
    independent meaning. That possibility could occur whenever a policy holder
    is deprived of property without any damage to it, say a portable grill or a
    delivery truck stolen without a scratch.”); Michael Cetta, Inc. v. Admiral
    Indem. Co., 
    506 F. Supp. 3d 168
    , 180 (S.D.N.Y. 2020) (“[T]he term ‘loss’
    would seem to include ‘theft or misplacement,’ which would not constitute
    damage to the property.     Further, ‘loss’ would extend to the complete
    destruction of property, whereas ‘damage’ contemplates a lesser injury.”
    (citation omitted)). Because “loss of” can reasonably be interpreted to cover
    14
    different scenarios than “damage to,” the surplusage cannon is not violated.
    See Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of
    Legal Texts 176 (2012) (“If a provision is susceptible of (1) a meaning that
    gives it an effect already achieved by another provision, or that deprives
    another provision of all independent effect, and (2) another meaning that
    leaves both provisions with some independent operation, the latter should
    be preferred.”).
    GreenStreet further argues that the only binding case on the issue is
    Azalea, Ltd., 
    656 So. 2d at 600
    , which it asserts stands for the rule that
    physical loss occurs when the property no longer serves its function, even
    though there has been no “permanent structural alteration of property.”
    GreenStreet misreads Azalea Ltd. In that case, a mobile home park insured
    its sewage treatment building under a policy providing coverage for “direct
    physical loss of or damage to Covered Property.” 
    Id.
     An unknown substance
    was dumped into the treatment facility. 
    Id. at 601
    . The chemical residue from
    the dumped substance adhered to the treatment facility, destroying the
    bacteria colony, which was “an integral part of the sewage treatment facility”
    and “specifically attached to and [a] part of the treatment facility structure.”
    
    Id. at 601-02
    . “The facility could not operate or exist unless this colony was
    replaced.” 
    Id. at 602
    . The First District reversed the trial court’s coverage
    15
    denial, rejecting the insurer’s argument that “there was no actual harm” to
    the premises. 
    Id.
     Specifically, the First District concluded that “there was
    direct damage to the structure” because “[t]he residue from the dumped
    substance actually covered and adhered to the interior of the structure
    causing destruction of the bacteria colony which was an integral part of the
    covered facility.”   
    Id.
       Thus, in Azalea, Ltd., there was actual, tangible
    damage to the property, and the case does not assist GreenStreet.
    Reading the phrase “direct physical loss of or damage to” in the context
    of the entirety of the Business Income (and Extra Expense) Coverage Form
    further supports our conclusion that loss of intended use alone, without
    tangible alteration to the property, is not sufficient to trigger coverage under
    the plain language of the Policy. The coverage for business income states
    that Lloyd’s will pay for actual loss of business income sustained “due to the
    necessary ‘suspension’ of your ‘operations’ during the ‘period of restoration.’”
    It also provides coverage for extra expenses incurred during the “period of
    restoration.” The Policy, in turn, defines “period of restoration” as beginning
    seventy-two hours after the time of “direct physical loss or damage” and
    ending on the earlier of “[t]he date when the property at the described
    premises should be repaired, rebuilt or replaced with reasonable speed and
    similar quality” or “[t]he date when business is resumed at a new permanent
    16
    location.” (emphasis added). Thus, the “period of restoration” provision
    contemplates physical, tangible alterations to the property that need to be
    corrected. See Malaube, LLC v. Greenwich Ins. Co., No. 20-22615-CIV,
    
    2020 WL 5051581
    , at *9 (S.D. Fla. Aug. 26, 2020) (stating definition for
    “restoration period” contemplates physical damage to property and “[t]his
    means that, if we construe ‘direct physical loss or damage’ to require actual
    harm, it gives effect to the other provisions in the policy. And that is exactly
    what Florida law requires us to do so that no section of the insurance policy
    is left meaningless.”); see also Oral Surgeons, P.C. v. Cincinnati Ins. Co., 
    2 F.4th 1141
    , 1144 (8th Cir. 2021) (“The unambiguous requirement that the
    loss or damage be physical in nature accords with the policy’s coverage of
    lost business income and incurred extra expense during the ‘period of
    restoration.’ . . . That the policy provides coverage until property ‘should be
    repaired, rebuilt or replaced’ or until business resumes elsewhere assumes
    physical alteration of the property, not mere loss of use.” (emphasis added));
    Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 
    15 F.4th 885
    , 892 (9th Cir.
    2021) (considering same definition of “period of restoration” and concluding
    that “[t]o interpret the Policy to provide coverage absent physical damage
    would render the ‘period of restoration’ clause superfluous”). GreenStreet’s
    only argument concerning the “period of restoration” is that it simply
    17
    addresses the time before normal use of the property can resume. This
    argument denies the full meaning and operative effect of the words “repaired,
    rebuilt or replaced with . . . similar quality.” See City of Florida City, 307 So.
    3d at 138.
    Thus, under this Court’s case law and the plain language of the Policy,
    loss of intended use alone does not constitute “direct physical loss.” Instead,
    “direct physical loss of or damage to property” requires actual, tangible
    alteration to the insured property for coverage to be triggered under the
    Policy. GreenStreet’s allegation that it suffered economic losses due to the
    City of Miami and Miami-Dade County closure orders does not satisfy this
    requirement. In this unique circumstance, where the City and County orders
    prohibited in-person dining, “[i]t was as if the government temporarily
    rezoned all restaurants . . . solely for takeout dining.” Santo’s Italian Café,
    LLC, 15 F.4th at 402. And “[t]o the extent [COVID-19] is a physical harm,
    such as COVID-19 particles present on surfaces in the restaurant, those can
    be easily cleaned.” Town Kitchen LLC v. Certain Underwriters at Lloyd’s,
    London, 
    522 F. Supp. 3d 1216
    , 1225 (S.D. Fla. 2021); see Mama Jo’s, Inc.,
    823 F. App’x at 879 (“[U]nder Florida law, an item or structure that merely
    needs to be cleaned has not suffered a ‘loss’ which is both ‘direct’ and
    ‘physical.’”). In short, the difference “between [GreenStreet’s] loss of use
    18
    theory and something clearly covered—like a hurricane—is that the property
    did not change. The world around it did. And for the property to be useable
    again, no repair or change can be made to the property—the world must
    change.” Town Kitchen LLC, 522 F. Supp. 3d at 1222.
    Conclusion
    Because the trial court’s finding that the phrase “‘direct physical loss of
    or damage to property’ requires some tangible alteration to insured property”
    comports with the common meaning of its terms and the context of the Policy
    as a whole, the court did not err in its interpretation of the Policy. We
    therefore affirm the trial court’s ruling that the economic losses GreenStreet
    suffered when it suspended its operations due to the COVID-19 pandemic
    does not give rise to coverage under the Policy. 3 The trial court did not err
    in dismissing GreenStreet’s petition for declaratory relief and damages with
    prejudice.
    Affirmed.
    3
    By our decision we do not mean to say that virus particles could never
    result in a tangible alteration to property, only that this is not the case here.
    19